Maldonado v. Ford Motor Co.

In this case we consider the essential authority of trial courts to control the proceedings before them. The issue in this case pertains to the extent of a trial court’s authority to govern the conduct of counsel and their clients in court proceedings. Where the Michigan Constitution authorizes us to make rules to govern court proceedings, the authority to enforce those rules inescapably follows. At the heart of preserving an organized polity, we must attend to relevant issues, including concerns over belligerent, antagonistic, or incompetent lawyering. To this end, we affirm the authority of trial courts to impose sanctions appropriate to contain and prevent abuses so as to ensure the orderly operation of justice.

*376We reiterate that trial courts possess the inherent authority to sanction litigants and their counsel, including the power to dismiss an action. Banta v Serban, 370 Mich 367, 368; 121 NW2d 854 (1963); Persichini v Beaumont Hosp, 238 Mich App 626, 639-640; 607 NW2d 100 (1999); Prince v MacDonald, 237 Mich App 186, 189; 602 NW2d 834 (1999). This power is not governed so much by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. See Chambers v NASCO, Inc, 501 US 32, 43; 111 S Ct 2123; 115 L Ed 2d 27 (1991).

We further acknowledge that our trial courts also have express authority to direct and control the proceedings before them. MCL 600.611 provides that “[cjircuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts’ jurisdiction and judgments.” Additionally, MCR 2.504(B)(1) provides that “[i]f the plaintiff fails to comply with these rules or a court order, a defendant may move for dismissal of an action or a claim against that defendant.”

In the instant case, we consider whether the trial court abused its discretion in dismissing plaintiffs case because plaintiff and her attorneys repeatedly and intentionally publicized inadmissible evidence so as to taint the potential jury pool, deny defendants a fair trial, and frustrate the due administration of justice. We conclude that because the trial court possessed the inherent authority to dismiss the action, and because the trial court warned plaintiff and her counsel that dismissal would result if they continued to publicize evidence ruled inadmissible by court order, the trial court did not abuse its discretion in dismissing plaintiffs case.

*377We also consider whether the trial court’s dismissal of plaintiffs case because plaintiff intentionally disobeyed its explicit warning to refrain from publicizing information regarding defendant Daniel E Bennett’s excluded conviction violated the First Amendment. The trial court’s limitation on the speech of plaintiff and her counsel was a narrow and necessary limitation aimed at protecting potential jurors from prejudice. See Gentile v State Bar of Nevada, 501 US 1030; 111 S Ct 2720; 115 L Ed 2d 888 (1991). The trial court’s narrow restriction on speech did not offend the First Amendment. The Court of Appeals novel requirement that dismissal is improper unless the jury pool was actually tainted conflicts with the substantial likelihood of prejudice test of Gentile. Moreover, “actual taint” is an impossible and unworkable standard, especially where nearly three years have passed since the incidents occurred. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court’s order dismissing plaintiffs complaint.

I. UNDERLYING PACTS AND PROCEDURAL HISTORY

Flaintiff Justine Maldonado, an employee of defendant Ford Motor Company, filed suit against Ford, alleging that a Ford supervisor, Daniel Bennett, sexually harassed her in violation of the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq.1 Ford (hereafter defendant) moved in limine to exclude evidence of Bennett’s 1995 indecent exposure conviction. Judge Kathleen Macdonald, the original judge assigned to the case, granted defendant’s motion and entered an order *378on February 16, 2001, excluding evidence of Bennett’s prior conviction in this case and in another action brought against Bennett, Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851 (2005).2 Plaintiff thereafter sought leave to appeal to the Court of Appeals and this Court regarding Judge Macdonald’s decision to exclude Bennett’s prior conviction. Both the Court of Appeals and this Court denied plaintiffs application.3

On September 11, 2001, less than a month before a settlement conference scheduled for October 3, 2001, and shortly after a three-week trial resulting in a directed verdict for defendants in the Elezovic case, plaintiffs counsel issued a press release on firm letterhead that referred to Bennett’s indecent exposure conviction, Judge Macdonald’s exclusion of that conviction as evidence, and the impending trial in this case.4 A *379series of news broadcasts and print media publications followed, replete with references to Bennett’s prior conviction.5

On November 9, 2001, Bennett’s indecent exposure conviction was expunged in district court proceedings.

By order dated January 11, 2002, Judge Macdonald established a trial date of July 8, 2002.

In February 2002, Judge Macdonald was assigned to the family division of the circuit court. Consequently, this case was reassigned by lot to Judge William Giovan. On May 17, 2002, Judge Giovan held a hearing regarding the admissibility of propensity evidence not currently at issue. Plaintiffs counsel invited the media to this hearing. Despite Judge Giovan’s order closing the hearing to the media,, plaintiffs counsel directed the *380media to wait outside until the hearing concluded to discuss details regarding the hearing.

Immediately following the hearing, Judge Giovan met with all counsel to discuss plaintiffs counsel’s continued public references to Bennett’s prior conviction despite Judge Macdonald’s previous court order and the expungement of the conviction. Bennett’s counsel pointed out that plaintiffs counsel’s behavior apparently violated MCL 780.623(5),6 which criminalizes the divulgence, use, or publication of information regarding an expunged conviction. Plaintiffs counsel responded by stating that “it was worth the risk” to continue to publicize Bennett’s expunged conviction.7

Judge Giovan declined to order plaintiffs counsel to obey MCL 780.623(5) because he considered it redundant to order an attorney to follow the law.8 Despite *381Judge Giovan’s expression of confidence that counsel would follow the law, plaintiffs counsel left the courtroom and met with the waiting media. This meeting resulted in extensive television news and press coverage, some of which again referred to Bennett’s expunged conviction and the possible exclusion of the propensity evidence.9 Shortly thereafter, plaintiffs counsel again discussed this case at a May 28 public meeting and a June 1, 2002, rally in Ann Arbor sponsored by BAMN (Coalition to Defend Affirmative Action, Integration & Immigrant Rights and Fight for Equality by any Means Necessary).10

Plaintiff subsequently moved to dissolve Judge Macdonald’s order excluding Bennett’s prior conviction from evidence. On June 13 and 21, 2002, Judge Giovan heard the motion. During that hearing, plaintiffs counsel mentioned that an article had been published in the June 12-18, 2002, issue of the Metro-Times, a free weekly publication readily available in the courthouse where jury selection was imminent. The article appeared on the front page of the newspaper and refer*382enced Bennett’s expunged conviction. This article prompted the following colloquy:

The Court: But, you know, since you mentioned the article, where’s this coming from? I thought that there is a prohibition against counsel speaking to — making public statements designed to affect trial.

Ms. Hardy [defense counsel]: There certainly is. There’s an ethics rule which prohibits counsel from intentionally trying to taint a jury pool by making the public aware of excluded evidence, which is exactly what’s been occurring for quite some time.

The Court: Is counsel being quoted in this?

Mr. Washington [plaintiff’s counsel]: I think counsel on both sides. Ford was not, but Mr. Morgan and Ms. Massie and I were both quoted, all quoted.

The Court: I’m not sure — well—

Ms. Hardy: It was initiated, without a doubt, and Mr. Washington will not dispute this, by Mr. Washington, as all the press has been initiated by his office, and the constant publicity is one issue, but the really serious issue is the effort by Mr. Washington to make sure that the press continues to report evidence or information concerning this expunged conviction so that some way, somehow, irrespective of this Court’s ruling — [11]

*383The Court-. I’m not making any decisions about this, but I’m going to tell you one thing. If I ever reach the conclusion that somebody is violating that ethical obligation and causing some difficulty in our getting a fair jury, I will dismiss the case with prejudice, or, and I should say, on the other side, grant a default judgment. I just want everyone to know that. And then whatever counsel is involved can answer to their client. [Emphasis added.]

The court denied the motion to dissolve Judge Macdonald’s previous order of exclusion.

Three days later, on June 24, 2002, plaintiff was deposed, at which time she admitted that she had disclosed facts regarding Bennett’s expunged conviction despite the trial court’s order disallowing such evidence. The following colloquy took place:

[Defense counsel]: If you can give me a ballpark figure, how many times since you found out about the expungement have you told other people about the fact that Mr. Bennett had this conviction that was later expunged?

[Plaintiff’s counsel]: You mean at people, period, one person at a time?

[Defense counsel]: Any individual, whether it’s groups, how many times has she gone out and publicized it, divulged it.

[Plaintiffl: I have no idea. It’s been a lot.

Q. Over 100?

A. I don’t know.

Q. Over ten?

A. Oh, definitely over ten, possibly over 100.

Q. Okay.

A. If I could get it out on the Internet, I would put it out on the Internet.

*384Moreover, plaintiff admitted during her deposition on June 24, 2002, that she would continue to disclose facts regarding Bennett’s expunged conviction. She stated:

A. I’m aware that you’re whining and crying because I’m talking about it all over town, yes, I am aware of that. I won’t shut up about it. It’s the truth. You can expunge it, but it’s the truth, and I’m going to tell it, and you know what? I will tell anybody that will listen because this man is a menace and he must be stopped, and you know it and you know it [sic]. But you guys want to protect him, that’s fine, I’m not. I don’t have to protect Mr. Bennett.

Q. So you’ve been talking about it—

A. To anyone.

Q. —any chance you get, to anyone—

A. That’s Right.

Q. —even though-even since you became aware that it was expunged?

A. Yes. Absolutely.

On June 26, 2002, two days after the deposition, plaintiff and certain of her counsel participated in a “Justice for Justine Committee” demonstration outside Ford headquarters. During the demonstration, participants distributed leaflets to the public containing information regarding Bennett’s expunged conviction and evidence regarding Bennett’s alleged behavior toward other female Ford employees that the trial court had ruled inadmissible. The leaflet also stated that Judge Giovan “is in Ford’s pocket” and “is trying to keep the truth out of the courtroom.” Also on this day, a television interview was broadcast on WDIV Channel 4, in which plaintiff stated:

If we don’t act the way he [Judge Giovan] wants it, the way he sees fit, then he’ll dismiss my case with prejudice. And what he doesn’t know is, it doesn’t bother me, because I’m not going to quit fighting against sexual harassment.

*385A demonstration similar to that held on June 26, 2002, was held the following day at the Ford Wixom plant, at which a similar leaflet was distributed.12

On June 28, 2002, defendants moved to dismiss plaintiffs suit on the basis that plaintiff and her counsel engaged in improper pretrial publicity aimed at tainting the potential jury pool. On July 1, 2002, plaintiff responded by moving to disqualify Judge Giovan. On July 3, 2002, Judge Giovan heard and denied this motion. The same day, plaintiffs counsel, Miranda Massie, appeared in a television interview broadcast on WDiy Channel 4. She stated:

Metro Detroit has a company town feeling, and it’s hard to get a fair hearing from any of these judges when you’re going against the Ford Motor Company. They’ll stop at nothing to maintain the culture of abuse that exists in those plants, and we’ve found it hard to get unbiased judicial rulings in these cases.[13]

On July 8, 2002, the date on which jury selection was to begin, Judge Timothy Kenny heard plaintiffs appeal of Judge Giovan’s denial of the motion for his disqualification and affirmed the denial. Also on July 8, 2002, Judge Giovan heard defendant’s motion to dismiss.14 Throughout the hearing, plaintiff and her counsel were *386discourteous to and uncooperative with the court. Specifically, in response to the court’s question, “Are you a member of the ‘Justice for Justine’ committee?” plaintiffs counsel, Jodi Masley, responded by stating:

Nobody’s ever asked me that in my life. I — you know what. I fully support the “Justice for Justine”, you know, committee. They have every right to do everything they [want]. And did I participate in a demonstration that was called by the “Justice for Justine” committee, I did.

Judge Giovan attempted to respond to Ms. Masley’s comment, but she interrupted him, stating, “I mean, have I or have I ever been a member of the Communist Party, is that what this is?” Moreover, in response to Judge Giovan’s inquiry regarding whether members of the “Justice for Justine” committee were present in the court, Ms. Masley stated:

Have you guys even ever heard of the phrase “Freedom of association... ?”

I have no idea. Do they need to know — identify their political affiliations ... ?

(Interposing) Who did you guys vote for in the last judicial election?

The hearing continued into the following day. At the conclusion of the two-day hearing, plaintiff requested permission to file a supplemental brief, which Judge Giovan granted.

On August 21, 2002, Judge Giovan issued an opinion and order dismissing plaintiffs case with prejudice, concluding that plaintiff and her counsel had engaged in premeditated misconduct designed to tamper with *387the administration of justice and that no lesser sanction would deter plaintiff or her counsel.15

The Court of Appeals, affirmed in part, reversed in part, and acknowledged the trial court’s authority to dismiss plaintiff’s complaint, but remanded the case to the trial court to hold an evidentiary hearing to determine whether plaintiffs and her counsel’s comments actually prejudiced the jury pool.16

Defendant sought leave to appeal to this Court. We directed the clerk to schedule oral argument on whether to grant the application or to take other peremptory action.17

II. STANDARD of review

This case requires us to determine whether the Court *388of Appeals erred in reversing the trial court’s dismissal of this case. Trial courts possess the inherent authority to sanction litigants and their counsel, including the right to dismiss an action. Banta, supra at 368. “An exercise of the court’s ‘inherent power’ may be disturbed only upon a finding that there has been a clear abuse of discretion.” Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997). A trial court’s dismissal of a case for failure to comply with the court’s orders is also reviewed for an abuse of discretion. Thorne v Carter, 149 Mich App 90, 93; 385 NW2d 738 (1986); MCR 2.504(B)(1).

In People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003), this Court noted that an abuse of discretion standard must be one that is more deferential than review de novo, but less deferential than the standard set forth in Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959). This Court stated that “an abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.” Babcock, supra at 269. The Babcock Court further noted that “[w]hen the trial court selects one of these principled outcomes, the trial court has not abused its discretion and, thus, it is proper for the reviewing court to defer to the trial court’s judgment.” Id. While Babcock dealt with a criminal sentencing issue, we prefer the articulation of the abuse of discretion standard in Babcock to the Spalding test and, thus, adopt it as the default abuse of discretion standard.

Additionally, in cases raising First Amendment issues, an appellate court is obligated to independently review the entire record to ensure that the lower court’s judgment “ ‘ “does not constitute a forbidden intrusion *389of the field of free expression.” ’ ” Gentile, supra at 1038, quoting Bose Corp v Consumers Union of United States, Inc, 466 US 485, 499; 109 S Ct 1949; 80 L Ed 2d 502 (1984), quoting New York Times Co v Sullivan, 376 US 254, 258; 84 S Ct 710; 11 L Ed 2d 686 (1964).

III. ANALYSIS

A. TRIAL COURT’S AUTHORITY TO SANCTION LITIGANTS FOR UNETHICAL BEHAVIOR

As stated above, trial courts possess the inherent authority to sanction litigants and their counsel, including the power to dismiss an action. Banta, supra at 368. “The authority to dismiss a lawsuit for litigant misconduct is a creature of the ‘clean hands doctrine’ and, despite its origins, is applicable to both equitable and legal damages claims.” Cummings v Wayne Co, 210 Mich App 249, 252; 533 NW2d 13 (1995), citing Buchanan Home & Auto Supply Co v Firestone Tire & Rubber Co, 544 F Supp 242, 244-245 (D SC, 1981). “The authority is rooted in a court’s fundamental interest in protecting its own integrity and that of the judicial process.” Cummings, supra at 252. “The ‘clean hands doctrine’ applies not only for the protection of the parties but also for the protection of the court.” Id., citing Buchanan Home, supra at 244.

Moreover, the Michigan Constitution confers on the judicial department all the authority necessary to exercise its powers as a coordinate branch of government. “Const 1963, art 3, § 2 divides the powers of government among three branches and commits to each branch exclusive exercise of the functions properly belonging to it, except as otherwise expressly provided in the Constitution.”18 In re 1976 PA 267, 400 Mich 660, *390662; 255 NW2d 635 (1977). “Art 6, § 1 vests the judicial power of the state exclusively in one court of justice.”19 Id. “Section 4 of that article[20] vests general superintending control over all courts in the state in the Supreme Court and § 5 confers upon this Court the power to make rules to govern the practice and procedure within the courts.”21 Id. “It is also well settled that under our form of government the Constitution confers on the judicial department all the authority necessary to exercise its powers as a coordinate branch of government.” Id. at 662-663. “The judicial powers derived from the Constitution include rulemaking, supervisory *391and other administrative powers as well as traditional adjudicative ones.” Id. at 663. “They have been exclusively entrusted to the judiciary by the Constitution and may not be diminished, exercised by, nor interfered with by the other branches of government without constitutional authorization.” Id., citing Attorney General ex rel Cook v O’Neill, 280 Mich 649; 275 NW 445 (1937).

Moreover, express authority to dismiss a complaint is conferred by statute and court rule in Michigan. MCL 600.611 provides that “[c]ircuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts’ jurisdiction and judgments.” Additionally, MCR 2.504(B)(1) provides that “[i]f the plaintiff fails to comply with [the court] rules or a court order, a defendant may move for dismissal of an action or a claim against that defendant.”

Several of the Michigan Rules of Professional Conduct address sanctionable attorney conduct. MRPC 3.6 concerns trial publicity. It provides:

A lawyer shall not make an extrajudicial statement that a reasonable person would expect to he disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. [Emphasis added.]

MRPC 3.5 addresses impartiality and decorum of the tribunal. It states:

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law,

(b) communicate ex parte with such a person concerning a pending matter except as permitted by law; or

(c) engage in undignified or discourteous conduct toward the tribunal. [Emphasis added.]

*392Finally, MRPC 8.4 deals with attorney misconduct. It provides, in relevant part:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer;

(c) engage in conduct that is prejudicial to the administration of justice.

B. THE TRIAL COURT’S AUTHORITY TO DISMISS THIS CASE

In this case, Judge Macdonald initially concluded that evidence of Bennett’s prior conviction was inadmissible before the jury because of its unduly prejudicial nature. Rather than abiding by the trial court’s order, even after both the Court of Appeals and this Court denied plaintiff leave to appeal regarding the order, plaintiff and her counsel engaged in a concerted and wide-ranging campaign in the weeks before various scheduled trial dates to publicize the details of the inadmissible evidence through the mass media and other available means. They continued to do so even after the trial court explicitly warned them that such misconduct would result in the dismissal of plaintiffs lawsuit.

The trial court has a gate-keeping obligation, when such misconduct occurs, to impose sanctions that will not only deter the misconduct but also serve as a deterrent to other litigants.

Moreover, MCL 600.611 and MCR 2.504(B)(1) provide the trial court with the authority to impose sane*393tions such as dismissal. Here, Judge Macdonald issued an order excluding evidence regarding Bennett’s expunged conviction. Judge Giovan later reaffirmed Judge Macdonald’s initial order of exclusion, and explicitly warned the parties that he would dismiss the case if the inappropriate remarks regarding the excluded conviction continued.22

*394Plaintiffs understanding of Judge Macdonald’s order and Judge Giovan’s warning to adhere to the order was clearly demonstrated in her deposition and in the June 26, 2002, television interview that was broadcast on WDIV Channel 4 in which she acknowledged Judge Giovan’s warning that dismissal would result if she continued her behavior, but further stated that “it doesn’t bother me, because I’m not going to quit fighting against sexual harassment.”

Plaintiffs counsel also clearly understood Judge Macdonald’s order and Judge Giovan’s explicit warning to adhere to the order. The trial court twice explicitly discussed the improper conduct with plaintiffs counsel and warned everyone about the consequences of continuing misconduct. Despite the warning, and despite the approaching trial, plaintiff and her counsel continued the misconduct.23 In fact, as Judge Giovan noted, *395plaintiffs lead counsel, George Washington and Miranda Massie, appeared in television news broadcasts that specifically referred to Bennett’s expunged conviction. Moreover, plaintiffs counsel acknowledged that counsel could possibly be violating the expungement statute by publicly disseminating information regarding Bennett’s expunged conviction, but stated that it was “worth the risk.” Also of note is Ms. Masley’s statement at the July 8, 2002, hearing that “Ms. Maldonado has a right to speak about Mr. Bennett’s conviction for sure.” She further stated that plaintiff and her counsel, depending on how close it was to trial, had the right to publicize evidence that had been excluded by the court.

Judge Giovan properly noted that, notwithstanding the rulings of two judges and the apparent illegality of disclosing Bennett’s excluded conviction, nothing would deter plaintiff from continuing to publicize information regarding Bennett’s excluded conviction. Plaintiff so admitted in her deposition. Even without an explicit order precluding plaintiff and her counsel from publicizing Bennett’s excluded conviction, Judge Giovan chose a principled option in dismissing plaintiffs case in order to protect the administration of justice. The imposition of any lesser sanction would have been unjust in light of plaintiffs and her counsel’s flagrant misbehavior.24

*396Not only did plaintiff and her counsel disregard Judge Macdonald’s order and Judge Giovan’s explicit warning to respect the order, counsel violated numerous rules of professional conduct. Plaintiffs counsel’s public references to Bennett’s excluded conviction violated MRPC 3.6, which was the basis for Judge Giovan’s dismissal. Plaintiffs counsel reasonably knew or should have known that their comments would have a substantial likelihood of materially prejudicing the proceedings by improperly influencing prospective jurors regarding Bennett’s propensities to commit sexual harassment, especially since trial was approximately two weeks away.

Plaintiff argues that Judge Giovan improperly relied on MRPC 3.6 in dismissing plaintiffs case. She contends that Judge Giovan’s dismissal was solely based on plaintiffs comments, and that MRPC 3.6 does not apply to nonlawyers. Plaintiff correctly argues that the Michigan Rules of Professional Conduct do not apply to nonlawyers, but mistakenly contends that Judge Giovan relied only on her behavior in ordering a dismissal. Plaintiff also erroneously contends that she is free to engage in improper pretrial publicity designed to taint the potential jury pool. The Michigan Court Rules do apply to plaintiff. They authorize the trial court to impose sanctions such as dismissal for party misconduct. MCR 2.504(B)(1). Judge Giovan expressly warned plaintiff that if she continued to disseminate informa*397tion regarding Bennett’s excluded conviction in violation of Judge Macdonald’s order, he would dismiss her case. Plaintiff failed to obey this warning and, thus, Judge Giovan properly dismissed her case.25 In any event, even if plaintiff is not bound by MRPC 3.6, plaintiffs counsel’s repeated public references to Bennett’s excluded conviction, coupled with Ms. Massie’s statement five days before trial that “Metro Detroit” judges were biased in favor of the Ford Motor Company, were substantially likely to materially prejudice the proceedings and improperly influence prospective jurors.

Judge Giovan did not reach a conclusion regarding a possible violation of MRPC 3.5, finding it was unnecessary because he dismissed the case under MRPC 3.6. Because Judge Giovan did not rely on this rule in dismissing the case, we need not reach a conclusion regarding a possible violation of the rule. We nevertheless enumerate plaintiffs counsel’s acts of disrespect against the trial court to highlight plaintiff’s counsel’s undignified and discourteous conduct toward the trial court.

Plaintiffs counsel, on numerous occasions, despite court orders and an explicit warning by the trial court, publicly divulged information regarding Bennett’s excluded conviction. Plaintiffs counsel also deliberately disregarded the trial court’s oral directive to refrain from *398disseminating information regarding Bennett’s excluded conviction. Ms. Masley sarcastically responded to the trial court’s questioning at the dismissal hearing, and at one point, while on the stand, turned to members of the “Justice for Justine” committee present in the courtroom and asked them who they voted for in the last judicial election. Additionally, Ms. Massie commented during a July 3, 2002, television interview that “Metro Detroit” judges are biased toward the Ford Motor Company. While this conduct may not amount to a violation of MRPC 3.5, it further justifies Judge Giovan’s dismissal for plaintiffs and her counsel’s participation in pretrial publicity designed to taint the jury pool.

We also note MRPC 8.4, although Judge Giovan did not rely on this rule in ordering dismissal. MRPC 8.4 prohibits lawyers from engaging in conduct that is prejudicial to the administration of justice. MRPC 8.4(a) prohibits lawyers from engaging in misconduct through the acts of others. Here, plaintiffs counsel not only failed to restrain plaintiff from repeatedly and intentionally publicizing Bennett’s inadmissible expunged conviction in order to taint the potential jury pool and deny defendants a fair trial, they participated with plaintiff in the misconduct on numerous occasions. This inappropriate and unprofessional conduct directly violated Judge Macdonald’s order, Judge Giovan’s reaffirmance of the order, and Judge Giovan’s explicit warning. Moreover, this conduct was directly aimed at frustrating the due administration of justice. It also supports the dismissal of plaintiffs complaint.

C. THE FIRST AMENDMENT AND A TRIAL COURT’S ABILITY TO RESTRICT SPEECH

The First Amendment guarantees that the freedom of speech shall not be abridged. It states:

*399Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [US Const, Am I.]

In Gentile, the United States Supreme Court addressed the standard governing the state’s ability to discipline an attorney under an ethical rule that is identical in all relevant respects to MRPC 3.6, regarding speech about parties or proceedings in which an attorney is involved. The Court rejected the petitioner attorney’s claim that he should be held to the “clear and present danger” standard applicable to the press, and concluded that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press.” Gentile, supra at 1074. The Court, in an opinion by Chief Justice Rehnquist, explained:

We agree with the majority of the States that the “substantial likelihood of material prejudice” standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials.

When a state regulation implicates First Amendment rights, the Court must balance those interests against the State’s legitimate interest in regulating the activity in question. The “substantial likelihood” test... is constitutional ... for it is designed to protect the integrity and fairness of a state’s judicial system and it imposes only narrow and necessary limitations on lawyers’ speech. The limitations are aimed at two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found. [Id. at 1075 (emphasis added).]

The Court noted that “[ljawyers representing clients in pending cases are key participants in the criminal *400justice system, and the State may demand some adherence to the precepts of that system in regulating their speech as well as their conduct.” Id. at 1074. The Court further observed that “[flew, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.” Id. at 1075.

Judge Giovan, after reviewing Gentile, found a substantial likelihood of prejudice:

More important, however, is that the plaintiff should not be heard to make her argument, which goes like this: “We deny that our behavior was intended to have a substantial likelihood of prejudice. But even if you establish that it was, you cannot dismiss the plaintiffs case until you establish that it has achieved its intended effect.”

We believe otherwise. That is not an acceptable standard for preserving the integrity of a court system. The behavior in question has been intentional, premeditated, and intransigent. It was designed to reach the farthest boundaries of the public consciousness. It should be presumed to have had its intended effect.

The Court of Appeals acknowledged that the applicable test under Gentile is whether the conduct generated a “substantial likelihood” of prejudice, yet remanded for an evidentiary hearing to determine whether “actual” prejudice occurred.

We hereby affirm the trial court’s understanding of Gentile. Plaintiffs and her counsel’s numerous public references to Bennett’s inadmissible, expunged indecent exposure conviction, despite a court order excluding such evidence, were obviously intended to prejudice potential jurors. The trial court thus warned the parties and counsel that all public references to the expunged conviction in violation of the ethical rules would result *401in dismissal. This limitation on plaintiffs and her counsel’s speech only applied to speech that was substantially likely to have a materially prejudicial effect and that, therefore, violated the rules of ethics. It did not prohibit plaintiff and her counsel from speaking about sexual harassment or the general nature of plaintiffs case. Judge Giovan, at the dismissal hearing, acknowledged the importance of upholding the First Amendment and drew a distinction between protected speech and speech merely designed to thwart the judicial process. He stated to defense counsel:

Well, now, before we move further, I think you understand that we need to draw a distinction between a party’s willingness and right to disseminate to the public their ideas of how they’ve been unjustly treated and the like, and even criticism of the Court as opposed to what’s really at stake here, and that is efforts to thwart the judicial system, and that is to disseminate, for example, excluded evidence and evidence forbidden to be disseminated by statute, which you have referred to. But nevertheless, you do need to differentiate between those two things.

The rules of evidence are designed to ensure fairness in the administration of justice, eliminate unjustifiable expe